Opinion
No. 5-338 / 04-1572
Filed April 28, 2005
Appeal from the Iowa District Court for Black Hawk County, Michael J. Newmeister, District Associate Judge.
A father appeals from a juvenile court permanency order placing his child in the guardianship and custody of the child's paternal grandparents. AFFIRMED.
Richard K. Betterton, Cedar Falls, for appellant-father.
Kathryn Mahoney, Waterloo, for appellant-mother.
Thomas J. Miller, Attorney General, Bruce L. Kempkes, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Steven J. Halbach, Assistant County Attorney, for appellee-State.
David Roth of Gallagher, Langlas Gallagher, P.C., Wateroo, for intervenors.
Andrew Thalacker, Waterloo, guardian ad litem for minor child.
Considered by Vogel, P.J., Miller and Hecht, JJ.
Jack, the father of Maggie, appeals from a juvenile court permanency order placing Maggie in the guardianship and custody of Jack's parents. We affirm.
Jack is the father, and Jill the mother, of Maggie, who was born in June 2001 and was three years and two months of age at the time of the August 2004 permanency hearing involved in this appeal. In April 2002 hair stat testing revealed Maggie had been exposed to methamphetamine. She was removed from her parents' physical custody and placed in the legal custody of the Iowa Department of Human Services (DHS) for placement in family foster care or relative placement. Maggie was placed with her paternal grandparents. Services to the family began. Maggie was adjudicated a child in need of assistance (CINA) in April 2002.
In February 2003 Maggie was returned to Jill's physical custody, with legal custody remaining with the DHS, while Jill entered the Heart of Iowa program and participated in its substance abuse treatment program. Jill initially made good progress in the program, but by the time of an April 2003 permanency hearing her progress had slowed substantially. The juvenile court accepted the recommendation of Maggie's guardian ad litem to defer permanency, but indicated an intent to not defer for an additional full six months.
Following an August 2003 permanency hearing the juvenile court returned Maggie to Jill's legal and physical custody, subject to protective supervision of the DHS and orders for continued services. It set a permanency review hearing for February 20, 2004.
In early February 2004 the DHS had concerns that Jill was using methamphetamines. The February 20 hearing was continued to a later date so it could be conducted by the judge who had up to that point in time been involved in almost all aspects of the case. In late February 2004 Jill tested positive for using cocaine, and admitted to using. She also tested positive for, but denied using, amphetamines. Maggie was again removed from Jill's physical custody and placed in the legal custody of the DHS for placement in family foster care or relative placement. She was again placed with her paternal grandparents where she remained at the time of the August 2004 permanency hearing.
In April 2004 Jill tested positive for cocaine use. In May 2004 she tested positive for cocaine and methamphetamine use. In July 2004 Jill tested positive for use of opiates. She alleged the July positive test was the result of her use for a severe headache of some Tylenol with codeine that had been prescribed two years earlier for pain from a root canal procedure.
At the August 2004 permanency hearing the DHS recommended that Maggie's custody remain with the DHS for continued placement with her paternal grandparents; that services continue, including family centered services, therapy and skill services, supervision of visitation, and substance abuse programming and random drug testing for Maggie's parents; and that permanency be deferred for another six months. Jill agreed with the DHS recommendation, as did Jack, who argued that with an additional six months Maggie could be placed with him.
Maggie's guardian ad litem opposed further deferral of permanency, pointing out that the case had been pending for twenty-eight months and urging that Maggie needed permanency. Maggie's paternal grandparents, as intervenors, joined the position taken by Maggie's guardian ad litem. Following a contested hearing the juvenile court transferred guardianship and custody of Maggie to her paternal grandparents pursuant to Iowa Code section 232.104(2)(d)(1) (2003). Jack appeals.
Maggie also appealed, but our supreme court ordered her appeal dismissed.
Our review of a permanency order is de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). We give weight to the fact findings of the juvenile court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g). The child's best interests control the court's decision. Iowa R. App. P. 6.14(6)( o); In re N.M., 528 N.W.2d at 96.
Jack has a lengthy history of substance abuse and crime, and has been in jail or prison on burglary and OWI charges and convictions for a large part of Maggie's life. He remained on probation or parole at the time of the August 2004 permanency hearing. Although he then urged that he would be prepared to have custody of Maggie if granted an additional six months deferral of permanency, he has apparently now abandoned that position. He claims on appeal that (1) permanency should have been deferred for an additional six months because Maggie had been in Jill's care for over six months and there was only one reported use of a controlled substance, and (2) the evidence was insufficient to show that Maggie could not be safely returned to Jill's care.
Both grounds urged by Jack appear to be claims that Jill's rights were prejudiced by juvenile court error. We note, but do not further address, the question of Jack's standing to assert rights personal to Jill.
Jill has a lengthy and serious history of using and abusing controlled substances. The six-month period that Jack refers to during which Maggie had been in Jill's custody and care ended some six months prior to the August 2004 hearing. Contrary to Jack's apparent assertion that Jill had only one reported use of a controlled substance since Maggie's return to her, Jill tested positive for illegal controlled substance three, and perhaps four, times in the six months immediately preceding the August 2004 hearing. Jill's lengthy and serious history of substance abuse, combined with her multiple, recent uses despite some two and one-half years of services, clearly support the juvenile court's determination, with which we fully agree, that Maggie could not be returned to Jill at the time of the August 2004 hearing.
As of the August 2004 hearing Maggie had spent almost one-half of her life in placement with her paternal grandparents pursuant to juvenile court orders. She had also spent substantial additional time in their care, including a great portion of the time between August 2003 and her second removal in February 2004. Maggie's CINA case had been pending for some twenty-eight months. The August 2004 hearing was the third permanency hearing. We fully agree with the juvenile court's determinations that despite twenty-eight months of services Jill had not demonstrated sufficient stability to find that Maggie could be returned to her within six months, and that deferring permanency for yet another six months was not in Maggie's best interests.
In summary, upon our de novo review we agree with the juvenile court's findings, conclusions, and resulting order, and therefore affirm.